Practice Relating to Rule 59. Improper Use of the Distinctive Emblems of the Geneva Conventions
Germany’s Military Manual (1992) provides: “It is prohibited to make improper use … of special internationally acknowledged protective emblems, e.g. the red cross or the red crescent.”
The manual also states that the distinctive emblem “shall only be used for the intended purposes”.
Furthermore, the manual states:
According to § 125 of the Administrative Offences Act … the misuse of the emblem of the Red Cross or of the heraldic emblem of Switzerland constitutes an administrative offence which is liable to a fine …
The abuse of distinctive emblems and names which, according to the rules of international law, are equal in status to the Red Cross may also be prosecuted.
Germany’s Soldiers’ Manual (2006) states:
The distinctive emblem for medical personnel as well as for medical establishments is the red cross on a white ground. Instead of the red cross, the red crescent is also recognized. From January 2007, also the red crystal is internationally recognized.
Improper use of the distinctive emblems is expressly prohibited.
Germany’s Law on Administrative Offences (1968) provides:
(1) Whoever uses the distinctive emblem of the red cross on a white ground or the denomination “Red Cross” or “Geneva Cross” without authorization, acts irregularly.
(2) Whoever uses the heraldic emblem of the Swiss Confederation without authorization, also acts irregularly.
(3) Emblems, denominations and heraldic signs which are as similar as to be mistaken with those mentioned in paragraphs (1) and (2) stand on an equal footing.
(4) Paragraphs (1) and (3) apply by analogy to such emblems or denominations which, according to international law, stand on the same footing as the emblem of the red cross on a white ground or the denomination “Red Cross”.
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “makes improper use of the distinctive emblems of the Geneva Conventions … thereby causing a person’s death or serious injury”.
In its judgment in the Emblem case
in 1994, Germany’s Federal Court of Justice stated that there was an essential common interest in the protection of the emblems against unauthorized use.
In 2006, in the German Red Cross v. R.H. e.V. case, the Regional Court of Hamburg held:
32. The applicant enjoys the protection of Section 12 of the Civil Code for the emblem of the red cross … The protection of Section 12 of the Civil Code applies also to the red cross used by the applicant, which as an emblem has its basis in Articles 38, 44 and 53 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 in conjunction with the implementing law of 21 August 1954 (Federal Law Gazette II 1954, 781). The provision of Section 12 of the Civil Code, which regulates the protection of the right to use a name, is applicable by analogy to the protection of the emblem of the red cross … By its use, to which the applicant has been entitled on the basis of letters of recognition by the Federal Government and the International Committee of the Red Cross, the applicant has acquired a material protective right to the emblem of the red cross according to Section 12 of the Civil Code. Unauthorized use of the emblem is prohibited by the provision on an administrative fine under Section 125 of the Law on Administrative Offences (see Federal Court of Justice, [judgement of 23 June 1994, “Emblem case”, with further references]).
46. The respondent’s objection of forfeiture … already cannot apply because there is an overriding public interest in the protection of the emblem of the red cross against unauthorized use, which outweighs the individual interests of the respondent. The emblem, as international protective sign, shall under all conditions of use at all times clearly and without doubt signify the function of those carrying it. Articles 53 and 54 of the Geneva Convention noted above accordingly obligate the States party to take the necessary measures to prevent and punish the unauthorized use of the emblem of the red cross and of all signs imitating it.
Official documents of the German military authorities stress that military buses bearing the distinctive emblem may – even in peace time – only be used for medical purposes. That is to say, transports of soldiers in such buses may only be undertaken if the transport has a “medical component”. All other transports are forbidden. According to the Report on the Practice of Germany, one document states that, before discarding vehicles displaying the emblem, the emblem must be made invisible or erased to prevent any misuse of the discarded vehicle.